'Scandalous' evidence will be made public at judge's hearing

"Scandalous" evidence expected to be heard by a panel of the Ontario Judicial Council can be made public, a judge has ruled.

A panel headed by Justice Eileen Gillese of the Ontario Court of Appeal ruled against a publication ban on evidence in an upcoming hearing looking into allegations that Brampton Justice Marvin Morten acted in a manner incompatible with the duties of his office and has brought the administration of justice into disrepute.

Morten wanted all the evidence, which is expected to come from his fellow judges at the Brampton courthouse, to be heard in public. It was Doug Hunt, a lawyer presenting the case to the judicial council, who asked for a ban on their testimony or for the hearing to be closed to the public when the judges and court staff take the witness stand, starting in May.

"Over several months, citizens are going to have to appear in the Brampton court in front of judges who have been criticized and berated by Justice Morten, who have been the subject of the most unflattering and extreme criticisms, that may be described as scandalous and may even have amounted to libelous remarks," Hunt said during arguments to the panel Thursday.

Judges must be able to work "free from the potentially destructive effects of the media spotlight" on Morten's hearing and citizens must have confidence in the courts, which could be eroded by publication of the judges' testimony, Hunt said.

Lawyers for the media, Ontario's Criminal Lawyers' Association and Morten himself, opposed his request.

Peel residents have a right to know why one of their "prized citizens" could be removed from the bench, said Robert Schipper, Morten's lawyer. Morten, 61, was Brampton's Citizen of the Year for 2002.

"My client wants to be vindicated and he wants to be vindicated publicly. Right now, it's a huge embarrassment to him and his family," Schipper said. "He has nothing to hide. He's not ashamed of anything that may come out in the process."

Peter Jacobsen, a lawyer for the Globe and Mail, argued the justice system could withstand the scrutiny. "The court system is not some delicate porcelain doll that will shatter," he said.

The panel ruled that the harm to the system was speculative, and it was not satisfied a publication ban is justified. Several weeks have been set aside for the hearing, which will begin May 8.

During arguments, Morten's lawyer said the region's residents, particularly its substantial population of visible minorities, deserve to know why a black judge is in danger of losing his job.

If Morten's hearing unfolds behind closed doors "there will be an uproar in the black community," added Munyonzwe Hamalengwa, a lawyer representing Pride News Magazine, which specializes in news for African Canadians, one of several media outlets that appeared before the council to oppose a sweeping publication ban on evidence.

Much of the evidence is expected to come from Morten's fellow judges at the Brampton courthouse. Lawyers for the Toronto Star and Globe and Mail argued that allowing them to testify away from the eyes of the public would send a message there is one set of rules for judges and another for other citizens who ordinarily testify in public.

The council will hear evidence over several weeks from judges who claim extremely angry outbursts by Morten and his "bullying" of judicial colleagues has "poisoned" the work environment at the Brampton courthouse and led some to fear for their personal safety, Hunt said.

Morten's colleagues will testify he has demeaned their competence and work ethic to their face and behind their backs, including to Ontario Chief Justice Roy McMurtry, he said.

Toronto Star lawyer Paul Schabas argued there was not one shred of evidence to support Hunt's argument that publication could impair the administration of justice. In fact, closing the hearing to the public would bring the administration of justice into disrepute, Schabas said.

"The public should know and must know what the evidence is, and how you are going to decide this judge's fate, if you will, as a judge," he told the panel. "If that involves, unfortunately, or perhaps fortunately, the scrutiny of conduct and efficiency of conduct of other judges, so be it.

"There may be reason to be critical of the courts in Brampton. We don't know.

"Justice is not a cloistered virtue and this hearing does not deserve to be private just because it might deal with the workings of the cloister of the court," Schabas said.

With files from Torstar News Service

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